On
February 23, 2012, Anthony Depina was shot and killed outside
a bar in the Roxbury section of Boston. The defendant, Jason
Barbosa, was indicted on the charges of murder in the first
degree and unlawful possession of a firearm as an armed
career criminal[2]. The Commonwealth proceeded against him on
the theory of deliberate premeditation. Specifically, the
Commonwealth's theory at trial was that the shooting was
committed as part of a joint venture wherein the defendant
was a knowing participant, either as the shooter or as an
accomplice. The jury convicted the defendant of murder in the
first degree, and did not specify whether they found the
defendant guilty as a principal or as a joint venturer.

On
appeal, the defendant argues that (1) the Commonwealth
presented insufficient evidence to support his conviction as
both the shooter and as a knowing participant with shared
intent to kill; (2) the judge abused her discretion in
admitting prejudicial gang evidence; (3) the prosecutor's
opening statement and closing argument were improper; (4) the
judge allowed inadmissible statements, which unfairly
bolstered the Commonwealth's theory of gang retaliation
and allowed improper interpretive testimony; (5) trial
counsel provided ineffective assistance of counsel; and (6)
the motion judge erroneously denied the defendant's
motion to dismiss the indictments. We affirm the conviction
and decline to grant relief pursuant to G. L. c. 278, §
33E.

Background.

We
recite the relevant facts the jury could have found. We
reserve certain details of the evidence presented to the
grand jury for later discussion of the defendant's motion
to dismiss. The defendant and the victim had ties to rival
Cape Verdean gangs. The defendant was a member of the
Woodward Avenue gang, and the victim was associated with the
Wendover Street gang. Although the groups were aligned at one
point, around 2005, the relationship between them
deteriorated and they became involved in an ongoing feud
active through February, 2012, when the victim was murdered.

On
December 24, 2011, the defendant and two other members of the
Woodward Avenue gang, Kenneth Lopes and Manuel Montrond, were
involved in an altercation with several members of the
Wendover Street gang, including the gang's leader, at a
gasoline station in Boston. The defendant and Lopes were
injured during the altercation, but neither cooperated with
the police investigation.

Two
months later, on February 23, 2012, around 9:30 P.M., the
defendant, who was on probation and wearing a global
positioning system (GPS) tracking bracelet, and Montrond
arrived at a bar near the intersection of Burrell Street and
Norfolk Avenue in Roxbury in a black Cadillac CTS rented by
Montrond. Minutes later, Lopes alighted from a different
vehicle. Montrond signaled Lopes by flashing his headlights
twice. The three men entered the bar.[3] The actions of the
defendant, Montrond, and Lopes were captured by the bar's
eleven video surveillance cameras. The cameras inside the bar
were continuously recording, while the cameras outside the
bar were motion-activated. Analysis of the time stamp on the
video surveillance and the defendant's GPS
data[4]
revealed that the time stamp on the video recordings was
approximately four minutes and thirty seconds fast. Other
actions that were relevant were tracked by the coordinates of
the GPS and involved streets that were near the bar.

Once
inside the bar, the men socialized with the defendant's
ex-girl friend, and her cousin. A few minutes after the men
arrived, Montrond left the bar and went outside to sit in the
Cadillac. The victim walked by and waved at Montrond on his
way into the bar.

Although
the bar is located in territory claimed by Woodward Avenue
gang members, members of the Wendover Street gang, including
the victim, also patronized the bar. The defendant and the
victim grew up together and were friends when they were
younger, but their relationship changed when the defendant,
who had been affiliated with the Wendover Street gang, began
to associate with members of the Woodward Avenue gang.
Despite the change in their relationship, when the victim
arrived at the bar just before 10 P..M. with Maria Teixeira,
the victim greeted the defendant with a handshake and then
walked to the end of the bar.

The
defendant and the victim each left the bar at different times
and returned without incident, including when the defendant
was in Montrond's vehicle while the victim walked by.

At one
point, however, the defendant left the bar and drove around,
returning to the area of the bar at around 10:20 P..M., and
then drove to Woodward Avenue. The defendant returned to
Burrell Street and walked toward the bar. The victim and
Teixeira left the bar just before 10:30 P..M. and stopped by
the victim's home before leaving again. Meanwhile, the
defendant appeared to be searching the area; he walked down
Burrell Street, where the victim's vehicle had been
parked, and then turned around, returning to his vehicle and
driving to Albion Street, where Teixeira lived. At around
10:45 P.M., the defendant returned to the area of Burrell
Street and Norfolk Avenue, followed by Montrond's rented
black Cadillac. The defendant alighted from a small,
dark-colored sport utility vehicle (SUV) and went inside the
bar. A black Cadillac followed the vehicle the defendant had
been in. Once inside the bar, the defendant looked around the
interior of the establishment, searching the bar area, pool
room, lounge, and bathroom before leaving less than a minute
after arriving.

At
around 11 P.M., the victim and Teixeira returned to the area
of Burrell Street and Norfolk Avenue near the bar. The victim
previously had made plans with Joseph Rosa, a member of the
Wendover Street gang, and two women to meet at the bar for
drinks. The victim and Teixeira arrived in the victim's
vehicle and parked on Burrell Street, with the driver's
side of the vehicle next to the sidewalk, near a dark alley.
Although the plan was to go have drinks at the bar, the
people the victim was meeting decided not to go inside.
Instead, the victim and Teixeira walked over to Rosa's
vehicle and spoke with the occupants through the
passenger-side window while standing on the sidewalk. While
the group was talking, the defendant pulled up driving a
small black SUV, and stopped alongside Rosa's vehicle.
The defendant said something to the effect of, "You
don't belong here." The victim said something back
to the defendant, and the defendant quickly drove away,
followed by the black Cadillac.

As a
result of the interaction with the defendant, Rosa and one of
the women encouraged the victim to leave, but he refused,
insisting that he was a "tough kid" and that no one
could tell him where he can go. Rosa and the two women left.
The victim and Teixeira went back to the bar, intending to
have a drink. Teixeira went inside the bar to use the
bathroom; the victim stayed outside and smoked a cigarette.
The defendant drove past the bar slowly in the small black
SUV. As the defendant drove by, the victim stood by the front
door of the bar and pointed at the defendant.

Seconds
later, the victim went inside the bar; he first went to the
bathroom and then waited for Teixeira at the bar, declining a
drink. When Teixeira joined him at the bar, he told her that
he had changed his mind and wanted to leave. The victim did
not tell Teixeira why he had changed his mind and appeared
normal, but a little "mad." As the victim and
Teixeira left the bar and walked to his vehicle, they had a
conversation about the earlier interaction with the defendant
at Rosa's vehicle. As Teixeira and the victim approached
his vehicle, headlights from a vehicle up the street flashed
four times. The victim looked toward the street. Teixeira
heard him use the defendant's nickname and say, "Are
you for real, Little J?" Teixeira looked down the street
and saw an individual walking in the middle of the street,
but she could not see the individual's
face.[5] Immediately thereafter, another individual
fired multiple gunshots at the victim from the nearby
alley.[6] The victim was shot in the head and torso,
and he fell to the ground, face up, in between the
driver's side door of his vehicle and the curb.

At or
about the time of the shooting, which was approximately
11:10:43 P.M., the defendant's GPS data
points[7]established that at 11:10:05 P.M., he was
located on Burrell Street, near Batchelder Street, traveling
zero miles per hour. At 11:10:36 P.M., the defendant was on
Burrell Street headed toward Norfolk Avenue, near the bar,
traveling two miles per hour. There was a missing data point
directly after the murder, which should have recorded at
11:11:06 P.M. Seconds after the shooting, the dark-colored
SUV drove down Burrell Street, turned right on Norfolk
Avenue, and then took another right onto Marshfield
Street.[8] At that time, 11:11:35 P.M., the
defendant's GPS coordinates show him traveling on
Marshfield Street at thirty-eight miles per hour. Minutes
after the shooting, the defendant returned to a house on
Woodward Avenue.[9]

After
Teixeira heard the gunshots, she ran across the street and
back inside the bar. Although Teixeira saw the victim go
down, she did not realize he had been shot when she fled the
gunfire. As she re-entered the bar, Teixeira kept saying
"shots fired, shots fired." Eventually, she went
back outside to discover the victim's body, lying face-up
between his vehicle and the curb. The bartender telephoned
911.

When
police officers arrived at around 11:15 P.M., Teixeira was
hysterical. Officers had to physically restrain her as well
as hold her upright because she was distraught, screaming,
and crying. She was transported to Boston police
headquarters. On the way, she stated, "They're going
to kill me for this." In the interview room at the
police station, she was still so emotionally upset that she
became physically ill. Shortly thereafter, she was asked some
questions. She stated, "These people want to kill people
because of the fucking street." After she identified the
victim, Teixeira announced, "I'm going to die for
this. I'm going to tell you anyway." In response to
the detective's question "Who shot?, " Teixeira
replied, "Little J, Jason."

The
victim suffered gunshots wounds to the head and torso, both
of which were independently fatal and caused his death within
seconds. Although ballistics evidence was recovered from the
victim's body and the crime scene, analysis was
inconclusive as to whether the bullet fragments were fired
from the same weapon. The shell casings were identified as
nine millimeter Lugar caliber and were fired from the same
semiautomatic pistol. No firearm was recovered in connection
with the victim's shooting.

As part
of the investigation, detectives sought to identify and
locate the Cadillac that Montrond had rented and the small
black SUV the defendant was driving on the night of the
shooting. The small black SUV was never located. Although the
rental contract on the Cadillac was set to end on February
29, 2012, Montrond returned the vehicle the day after the
shooting, canceled the contract, and established a new rental
contract for a 2012 Buick Lacrosse.[10]

Two
days after the shooting, the defendant and Montrond were
stopped by police, who seized the defendant's cellular
telephone. Pursuant to a search warrant, detectives searched
the defendant's cellular telephone and telephone records.
The telephone records established that approximately two
minutes before the shooting, the defendant telephoned one of
the leaders of the Woodward Avenue gang, and that
approximately one minute after the shooting, at 11:12 P.M.,
the defendant made a telephone call to another leader of the
Woodward Avenue gang. Between 11:13 P.M. ...

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